Medical marijuana moratorium in Boulder: The Bushes connection

This week, Boulder City Attorney Tom Carr asked the city council to impose an emergency moratorium against new applications for medical marijuana operations, to run through at least February 8. Why? The heart of the matter involves a court ruling, on view below, focusing on Bushes, an MMJ grow.

Bushes first surfaced in this space last month, after medical marijuana reviewer William Breathes gave a positive review to The Station, a Boulder dispensary. Shortly after the item's publication, commenters informed us that the center had closed, but it reopened shortly thereafter.

The Station.

What happened? Boulder spokeswoman Sarah Huntley told Breathes that the city never had a problem with The Station. Instead, Bushes, its affiliated grow facility, was the rub, as she elaborates in the wake of the council's action.

"The initial issue with Bushes, as I understand it, is that on at least one occasion when inspectors went to perform their review of the business, the owner declined to let them in," she says. "Subsequent to that, the city discovered the owner" -- Jack Pease, doing business under the name Buffalo Enterprises -- "was growing plants somewhere other than the licensed premises. Those are the grounds under which the city's hearing officer denied the license to Bushes."

The question of whether the hearing officer's denial was made on appropriate grounds "is still before the Boulder District Court and Judge Andrew Macdonald," Huntley continues. "In the meantime, the owners of Bushes asked the court to prevent the city from being able to shut them down, and the court agreed."

True enough. Macdonald's order, included here in its entirety, granted Bushes a preliminary injunction against closure due in part to the impact the decision would have on The Station due to state law requiring the owner to produce the majority of his or her own product. "The value of the existing license will be substantially destroyed by the City's proposed action," Macdonald writes, because of the regulation requiring "that a MMB cultivate at least 70 percent of the marijuana necessary for its operation. Because Buffalo is only capable of cultivating marijuana at its grow facility, it will not be able to meet this statutory requirement and the value of its existing permit will be substantially impaired if it cannot obtain a license for the grow facility."

Page down to read about the possible impact of the moratorium.

Judge Andrew Macdonald.

Macdonald's order wasn't the only reason for the moratorium request. "The City Attorney recommended that time be taken to review the rules," Huntley points out. "One of those reasons, and certainly a significant one, was the court ruling, which really calls into question the ability of the city to enforce the regulations council has set around these businesses. But he also said that, as happens when you go through any kind of new regulatory process, you often discover there are consequences you didn't anticipate. He wants to take the opportunity to gather information about those unintended consequences and whether there should be changes to those regulations moving forward."

Huntley stresses that the moratorium is temporary, and the burden shouldn't be great. "We actually aren't getting a significant number of new applications right now," she notes. "We're continuing to wrap up the review process for the initial wave of applications that came in when licensing regulations came into effect. There are about 73 licensed dispensaries and twelve pending a decision -- and those twelve will continue to go through the process."

Hence, the only impact will be on businesses planning to apply for the first time or "somebody denied an application who created a new business entity that tried to take into account something they were denied for," Huntley continues -- and even delays in those cases may be as brief as a few weeks.

Of course, that's not set in stone, since "council will have a number of options after its next public hearing," she concedes. "They can extend the moratorium, they can direct staff to amend regulations, they can ask staff to seek and provide more information. And I really couldn't speculate as to which way they'll go."